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ELRCDismissedMiscellaneous Cause (contempt application filed 12.11.2015, pursuant to leave granted 28.10.2015)· [2016] KEELRC 1411 (KLR)

Union of commercial food and allied workers v Jatomy enterprises limited (Cause 59 & Miscellaneous Cause 5 of 2014) [2016] KEELRC 1411 (KLR)

Employment and Labour Relations Court

14 April 2016

BOByram Ongaya

746 words in judgment

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The bottom line

A Kenyan court dismissed a union's bid to jail a company CEO for contempt because the application was filed incorrectly and targeted the wrong person.

What this practically means

Executive summary

The claimant union filed a notice of motion on 12.11.2015, under section 12 of the Employment and Labour Relations Act and sections 5 and 6 of the Judicature Act, seeking orders that Mr. Jackson Kibuyi Wainaina, the respondent's chief executive officer, personally appear in court and be committed to civil jail for six months for contempt of court orders. The alleged disobedience related to a ruling by Abuodha J. delivered on 22.05.2014 in Cause No. 59 of 2013 (directing commencement of check-off deductions, access for recruitment, and execution of a recognition agreement) and a judgment by Ongaya J. on 31.07.2015 directing compliance and restraining victimisation of union members. The respondent opposed through a replying affidavit sworn on 08.03.2016. The court upheld the preliminary objection that the application was an abuse of court process: it was titled as filed in two decided cases which had never been consolidated, and it was filed with a complete statement of claim as though it were a fresh suit, both fatal procedural defects. The court further noted Miscellaneous Cause No. 5 of 2014 had been found res judicata. Additionally, the orders were directed at the respondent, and the claimant failed to justify proceeding against the chief executive officer personally without moving against the respondent. The application was dismissed with costs. Judgment was delivered at Nyeri on 14th April 2016 by Ongaya J.

Key legal issues

Abuse of court process in filing the contempt application

Holding

The application was an abuse of process because it was titled as filed in two separate, unconsolidated decided cases and was accompanied by a complete statement of claim as though it were a fresh suit

Reasoning

The court found the two decided cases (Cause No. 59 of 2013 and the 2015 judgment) were separate and never consolidated. Filing one application in both, and attaching a complete statement of claim as if commencing a new suit, breached the prescribed procedures for contempt applications. Further, Miscellaneous Cause No. 5 of 2014 had been found res judicata, and purporting to file in those proceedings compounded the abuse.

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Personal liability of the respondent's CEO for contempt

Holding

The court orders were directed at the respondent, and the claimant failed to justify bringing the contempt application against the chief executive officer personally without moving against the respondent

Reasoning

The contempt application targeted Mr. Jackson Kibuyi Wainaina personally, yet the orders alleged to have been disobeyed (those of Abuodha J. of 22.05.2014 and Ongaya J. of 31.07.2015) were directed at the respondent as an entity. The claimant did not establish any basis for bypassing the respondent and proceeding directly against its chief executive, so the application failed on this ground as well.

p. 2

Legal principles established

Contempt applications must comply with the prescribed filing procedures; titling an application as filed in two unconsolidated decided cases and filing it with a complete statement of claim as if a fresh suit are fatal defects
Where court orders are directed at a corporate respondent, a contempt application should be brought against the respondent, not its chief executive officer personally

Court orders

1.The application for contempt is dismissed
2.The claimant to pay costs of the application

Authorities

Legislation

Employment and Labour Relations Actsection 12
Judicature Act, Cap. 8 Laws of Kenyasections 5 and 6
Labour Relations Actsections 54(1), 56(1) and 56(2)

Jurisdiction invoked: Section 12 of the Employment and Labour Relations Act; sections 5 and 6 of the Judicature Act, Cap. 8 Laws of Kenya

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Union of commercial food and allied workers v Jatomy enterprises limited (Cause 59 & Miscellaneous Cause 5 of 2014) [2016] KEELRC 1411 (KLR)", Case Analysis (2016). Miscellaneous Cause (contempt application filed 12.11.2015, pursuant to leave granted 28.10.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1411/eng@2016-04-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.